Karnataka High Court
The Commissioner Of Income Tax, vs M/S G.R.Developers , 142-143, 1St ... on 29 February, 2012
Bench: N.Kumar, Ravi Malimath
A A "ANDT:.° '
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29*" DAY OF FEBRUARY
PRESENT Q %
THE HON'BLE MR. JUSTICE"VN_.KUI\fiA'R"T-E': y A
AND
THE HON'BLE MR.JUSTi_CE__RAVI..MA.LI|ViAT}j=..,_H
ITA.NO.355 D:F'2 ooe9
BETWEEN:
1. The Commissioner of.Ivn*c.ojme----Tax A A
C.R.Bui|ding., 'Q_..ueens;_Ro€ad..;
Bangalore, 'T .1
2. The DepLVJt'~y. Tax,
Circ|e¥3V(1),V:iC.R.'Eui|d'inég-, '
Queens__Road;.V--«»._"» . .
Bangalore.' . ...APPELLANTS
(By Sri_ K.v.V'Aravin.dV,eV._Ad~v}5c.éOte)
'3.,_EG§R{Deveio-pé~i's
NoE,14.2-1'43";;1%? Floor, GR Plaza,
D.V.»€3_.Road,_ Eaasavanagudi,
g BangalDr'e, ...RESPONDENT
A V' ':j(.By'ES.mtTS.R.Anurad ha, Advocate)
*****
This ITA filed under section 260--A of I.T.Act, 1961 arising out of order dated 05.02.2009 passed 7__in, ITA.No.668/Bang/2006, for the Assessment year 200.4"-0_5,_ praying to formulate the substantial questions;""of.f;la_w5;__ stated therein, allow the appeal and set asidethevorderi 0' passed by the ITAT, Bangalore in ITA.No.668,/Bang,/2006, dated 05.02.2009 and confirm they-o'r"ci'er, passed'i'-by 'thje, 0' Deputy Commissioner of Income T.a;<f}, I_Circ'le-'3(-1__),..,..f Bangalore.
This ITA coming on for hea'r_in'g, this"d.ay,.l\l Jj., delivered the fo||owing:-- ' . ~ The assesseé is lgusiness in real estate, deve|opment.,..'§o'ris:;_5rjction andflsalle of apartments. The assessreer'~Vo.bta:i;n.ed--».approval....~i'or building housing project in an 14 guntas of land in Kanakapuraxlload.xV'The',_app':'oved housing project included ."v.(;OnSl';'i'U..Ctl0'l? of c'o--m,m_e,rcial building. The assessee has V7_built*8,4-.a'pa'rt,ments. The commercial building was also constructed'6--".witAhiVn the super built up area of 17,600 sq.ft. y {The aépprvovaléltof project was granted on 14.06.2002. The "..jc_:vonstructi'on had to be completed on or before 14.06.2006. 'assessee claimed 100% exemption from payment of V income tax in respect of the residential flats. A survey under Section 133A of the Income Tax Act hereinafter referred to as the Act) was carried:_."out_:o-nl" M 24.11.2005 to verify whether the assessee«firr*n a-1!!) the conditions laid down underthe 8OIB(10) of the Act. In the noticed that the construction r'eside'n'tia'l»f~la}ts at G.R.Grand Residency anduathe'clo-rnnfierciia|V"_»cofljDlex in the said complex 'deyiations from the sanctioned assessee firm had contravened"the':plrofisvioniswyyotl Siecti»ori§ 8OIB(10) of the Act. The said Fu rther it was noticed that the sanctioned-'plan'p_ro\.(ide.ri' for 84 units and a swimming _.4-"pool the c'ent.re«,' open to sky but as per actual 'co'nstructi"o_n',~ of the units was replaced by the swirnmiingvpoo_lV..i'esu|ting in 83 units, as certified by the 'Principal..A'rchitect of the assessee Shri.K.V.Harsha Babu on It was also noticed that the project called AV'-.___"'G.R.;Grand Residency also contains some flats with pent li/ houses on the 3'" floor. In the said pent houses, a room was constructed on the terrace, which was called as,_h»ead__ rooms. It was noticed that these head constructed in similar design with spiral s_tair.c.a::s,es*~..:with same type of materials, designs land-~colo'urs...'Itfw_as;f further found that these constr.uctioVn«3V_'were with the help of the engineersvfivlofllyythe with the materials supplied by payments were made separately in addivt.ion'_t:9 flat as per the sale deed. many top floor flats with tfné' limit of 1500 sq. ft.
The said' integral part of the housing project. 'The asse~sse'e' co"n't:'en.ded that as the construction of thenead roo-mswere made by the purchasers, the said "cannot be taken into account to find out e[ac'h unit is within the limit of 1,500 sq.ft. V if _ Sim'i'larly_',' thespace occupied by the balcony also should be :_"'excluded-* as per National Building Code, as it does not fall
--.rV':l_;lVtl'iiFI"' the definition of built up area. If these two things l/ are excluded all the 84 flats would be within the 1,3500 sq.ft., and therefore the assessee is entitled to the_4ben.efi.tv under Section 8OIB. However, the assessee . benefit in respect of the commercial const'r'uc-tiiionlfi. The, Assessing Officer held that as all these'heaéd._ro'o'rns"iis-.__so:;_*' unique in style and design with '3.piralxstaircaseiaififiiéxactlv the same material with same:"co:l_ouru, has constructed the same,' not have been there. The.refore.,~--Vhiejjgrecogrdgedv_'a:fi"f,i'n:ding that the assessee urioogms though in the registere_d_'Vs:a=l§V,:i,¢le.e:dof it. The Assessing Authority held"tr;at_:VAi'the'r'%.A:'«§.r_e-- considerable deviations and violations'-theVconsti*u_cti.on of the housing project _ compared. to ti'.eusanci:ioned plan and several flats with in excess of 1500 sq. ft. and the housing "'vc'a_n_no.'t2'~"strictly come within the purview of a if _ houlsingv-._'.pr'oj"ect as envisaged in Section 80IB(10) and _:'thesrefor'e,¢ the assessee is not entitled to the benefit of 80IB(10) of the Act. Aggrieved by the said order, l/ the assessee preferred an appeal to the Appellate commissioner, who upheld the said order. Aggrieve;d..4_:'by the same, the assessee preferred an appeal_.liefo'rej=the-.____"_ Tribunal. The Tribunal by settingmaside."tile.::'3f6'resaid.u:if orders held that the material on record"doesanot"esta:bs.I_is'lr::gi the fact that several flats weve*e'«.b.ui|tV'u~p'Vin of 1500 sq. ft. to deny the:"'ie:git.i_maté' of the assessee. The Municipa«!._"7«u.tl'i:oréties'=--h'aye__not pointed out the alleged excess vbuilt,.u~pn_a're'a.l while giving occupancy bejcVa'u'se""t:hese head rooms were drawn that the said constru'c_tio__n.A assessee. The purchasers of the said flagtlswould"l:'.hay:é--~::én,§Jaged the same masons and the 'e;ngineerVwhoV"were working with the assessee for the 'of said flats. When once the occupation "cert'i_ficate"'_~.,iV_s»AV.liV;ss'ued by the municipal authorities being it _ sati'sfied.."w'ivt:h the construction put up and held that the i's'.in accordance with the sanctioned plan and thereafter, if construction are put up by the owners of the Q1/ building, the assessee cannot be held responsible. "The provision of Section 8OIB(14)(a) cannot be inte_rprete:l with retrospective effect so as to deny Section 8OIB(10) to the assessee. Itywas furthe*r.:hel'd: than " if a housing project approved by lo'ca.l:' a'aLx,mi~ority"Vfn.ay<::_:
include a commercial building'«--..also1'-andVtherefc.r.e,h the conditions prescribed under Section --8VOIB.(1Ol)f_is satisfied and the assessee is ent'i«tlc?dAtog lfb-ejnefitg» and therefore, the appeal was a!lowed:.gra.rjting.yAbyenfefit:"'to'the assessee. Aggrieved byythe order, the...4rgyenue"is in appeal. 2}.._ -admitted on 14.12.2010 to consider thefollowing..:subst'a'n'tial questions of law:
_;i')" Whether the Tribunal was correct in holding V' " that thevllll/Xssessing Officer had failed to prove Lha:t't.he residential flats exceeded built up area V' 'T'.'*o.f'A'lV5OO sq. feet each and penthouse flats and ' other flats which were specially built contrary 1:' to the sanctioned plan was built by the assessee or by the owners had not been proved by the Assessing Officer by shifting the l/ burden when allowing deduction u/S.80IBh_(10) of the Act? ''
ii) Whether the Tribunal was that the definition of "built up ar_ea.'.',_'4i:nsert::ed_ "
Finance No.2 Act of 20Q4mw'.'e.._f.7;Q1;;O4l".2QQ'57to Section 8OIB(10) of "';th:e_ T A' __ca.nnot"
applicable to the*cu--r_rent 'assessment»y_ear3 as the same is not clariffctory and léwouldithave to be read prosp.ective'|'y'?r fig
iii) Whether thevjlrahuntalfgiw'as"'cIo;r.rect in holding that housingL}projAéc't'~~.Qyet which deduction was claimed was ____ H e'nti:t!é;dgv_ saimevifdespite a commercial cornple§.4VV'al--sot~..--_.been-- constructed and wrongly Q ap'pl.yVingjtVh'e._:Bea'rd Circle?
1. iv)_ 'Wh.etite'r t.heé"T.ribuna| was correct in allowing ..deducti'o-n--«'u/S.8OIB(10) of the Act when the 'a'sa'i'n_e was to encourage infrastructure of middle income housing ~'_p:rojects recognizing the acute shortage of housing facilities in bigger cities and second tier cities so that the tax benefit should be passed on to the consumer when the assessee V violated the norms prescribed in the Section and the sanctioned plan by availing of baenefit not entitled of it? ' " "
3. FIRST SQBSTANTIAL pg i " «.
LA W:
.j.__.--.
From the aforesaid mat-eria|,V"it"'is cle'ar_:_T§the assessee obtained approval for'V'Vbu.Vi»v|:din_g project on 14.6.2002 and has vvhich is in excess of one acre of lan.d.:l'_ is completed within the _.:_<49{1.:V\'fVlat's',"iéaccording to the assessee material on record discloses The head room is not inclu_d'ed The local authority, after constga'uvctionuof.Vth'e"' building, inspected the same and has lg ran'tedE"~'occVu~p_ancy certificate. Therefore, the construction ~by._ti:e'-assessee prima facie can be said to be as per"~.the_fsanctioned plan. If after issue of occupancy and after sale of these residential flats, if the _foVw-nefrés of these flats on the top floor decided to put up a ll/ -10- head room and engaged the very same contractor andfthe engineer may have put up the identical cannot be said that the assessee has put M construction and thus, contravene,rJ"mth'e'«re«qui;rementv"of Section 8OIB. The material on record does not'dvis'c|o'se--~.:V"
that the assessee put up the saidflc'onstruction.up'rior,»'to"'the sale of those flats and ,e;<.c|uded'"'th,e:' sfaid construction in the sale deed with an intention bgfie_fit of Section 80IB(10).
3(a) as arieconcerned, prior to O1.04.2OQ5,__thel'llarea:"covered_' by them has to be excluded in calculatinggéthe As the housing project was _ approyvged on and in the said plan, all these V",balc.o_nies1"are: "shown and excluding those balconies, the is admittedly less than 1,500 sq. ft.
_After""01.f)4.2(fl'O5, the authorities cannot add the balcony the built up area and deny the benefit to the
-assessee. Therefore, as the material on record discloses if Hart-h--at all the 84 or 83 flats constructed are less than the i/ -11- 1,500 sq. ft., the assessee cannot be denied the benefit and taxed on the ground that it exceeds 1,500 Hence this question of law is answered in favoujr:'-of._tn'e'~ assessee and against the revenue.
4. sEg_o_No sgBsTA_£LT,_IAL°--- _Q" g1ES.T,I'g'«'.?Ng it l LA W:
The question is whether ofligbwt up area" as inserted byV_FinanceV_(l\"~o.§§)Vl;§ict="ol' with effect from in nature.
The said provisior:i_44_'reaVd.s' K V "secraonscia 'A"F_or the Section,-
_(a$" area" means the inner '-'m€ea.surements'"'o'f"the residential unit at the floor '.V.V"'le\(el_v,;'~in«cl:ud_ing the projections and balconies, as ~. A"'.i.ncr'eaVs'ed'tjyvllthe thickness of the walls but does not "'i4nc|t¥'tl'e..'.7~*'the common areas shared with other reside-ntial units" \/
-12..
5. Prior to the insertion of this definition in.g't'h,e aforesaid section, built--up area did not include project.i:on'sg"",, and balconies as per the National Building Code',-..:Bui_i'dVifng ' Industry Practice and also according"'tQ(the bylaws. Probably taking advantage thisf_lfa'ct,'~ builders provided these balconi'es:"'and made these residential units and thus, had the benefit of one hand.
Whereas the objectiéjgvjiith was made in reality was déf§;~..t{§'d"'5V'aé residential units would be.ijeyo.ndj;gthe'fi:'eac'h,of thecommon man.
6. 'Itfis in'=thi's"biaclégground, this amendment was brough*;'tct.law.Vby of insertion making it clear that the :':_sa'id_projectiofrygand balconies constitute common area sVha,re!d__ w'it4h'~«..oth.evr':"residential units and they have to be included in' definition of built up area and then such "should satisfy the requirement of 1,500 sq. ft. 4"'T:he_refore, notwithstanding the law governing the ':'_4'covn--struction of the building, for the purpose of getting a V _13_ benefit under the Act, they have to bring the construction within the requirement prescribed under this only, they would be entitled to the benefi't._:
exemption under Section 8OIB. ['l\lo'r'mall-y, amendment is effected by way, of in'serti.o.n, effect that the earlier section which is s--u:bstituted« is wiped out and in itsplace,ivthlisri"a.sjg'5§.tjtuted'"section is inserted, as if the said i_n_:'V:'tAfi:V¢'b'_'statute book from the day, lwias~:,p'a'ss.eal',V:'Vj'fherefore, it is retrospective in but':-.itA"is._,njotlan--invariable rule.
7. -said provision by way of insertion, t'|'1e,4'le,gisi'atVu'.".le made the said provision retrospective by "any express words. On the contrary, on 'provision was inserted, they have also su'bsti.tute'dv'fthne provision by way of insertion. The said s'u..bst.i_tutedAprovision sub--section 10 of Section 8018
7.',":e"a'dsVa as under:-- \l/ -14- "The amount of deduction in the case of h an undertaking developing and buildingig housing projects approved before the H of March, [2008] by a local authority shall bett'ta[t"
hundred per cent of the profits gderived"inf'_the'w. previous year relevant to any assjessrrzent f from such housing project if, ' _ _
(a) ltuch undertakir2~g:""h_as commences __de've_iopmeni and construction. of the pro on or after the o_f:_lOcftolber, 1998 and ' completes1such..V:co_nsVtr:,rction, -
.(i_)§'--.in project has 1: by local authority hhhh " as April 2004, on or shearer day of March, 2008;
'A ca'se':"o_tivvhere a housing project " ..hasV.bee'n,"or, is approved by the local A authority on or after the 15' day of '«..:""April, 2004 [but not later than the 315' VAV.:day of March, 2005], within four years from the end of the financial year in which the housing project is approved \/ by the local authority;
_. _
(iii) in a case where a housing project has. been approved by the /oca./_j;_ authority on or after the 15' April, 2005, within five years is end of the financialcyear iri'Vwfiich. the housing project is approvedinby.
local authority. ] Explanation- For the purposes ofvbthisui [clause-
(i) in a case wheiej' approval in respegtw project is obtained" more V than one housing to have been V To."'approvedfj;-on' .._ti:e7:da*te on which the .... _bi"-.l_Vhbbuildirrgtplanb 'o-fisuch housing project VV'V-"is~.._»'b'first._f"'approved by the local 2 ii)the--_ completion of construction "of.t_h_e«.housing project shall be taken t0 be the date on which the "n-{Completion certificate in respect of such housing project is issued by the local authority;
..(b) the project is on the size of a plot of /and which has a minimum area of one acre:
-16-
Provided that nothing contained in c/ause(a) or clause (b) shall apply to as' housing project carried out accordance with a scheme fram_ed'''b'y.'jj'e:.,. ;. the Central Government ._ Government for recoinsitru-ctio'r:. redevelopment of exiétiny areas declared 'to"*«l;e slum' area'sjur:'derm any law for the being in.
such scheme is 't;i'otifiejdVbiy_'the Board in this beha/'f",'d ° :1'
(c) the v_resider:t/El Vuflit has " maxim um H bf :one""ti7o-uzsand square this residential unit is **** city of Delhi or Z ' 5 within twenty-five 4' _kilo.meters' the municipal limits of these cit,ies°and one thousand and five _ hundred square feet at any other place, ] I built--up area of the shops and other . 'commercial establishments included in V the housing project does not exceed [three] per cent of the aggregate built-
up area of the housing project or [five V -17- thousand square feet, whichever is ._ higher];] [ (e) not more than one residential the housing project is allotted person not being an individual,' "aridT;; . "
(f) in a case where a res}iden:tialfj.u'n_it':
housing project is allotted to a.:[_J_el'S'Ol'7 V being an individualfino othe__r residei'2tia'l'i unit in such housingprojecth'iseal/otted to any the 3. persons,
(i), the individual or«./:'th_e spouse or the g ._o4Vfj;such:'individua/ i ,t%i(ii4)j'the .l*i'indLiffundividéjd"family in which """ 'V karta, '- ' representing such spouse or the minor ._,AchildrenéTof such individual or the A Al¥liridu"undivided family in which such individual is the karta.] ' E§<planation-- For the removal of doubts, hereby declared that nothing contained '~ _ in this sub--section shall apply to any undertaking which executes the housing project as a works contract awarded by any V _18..
person (including the Central or State ._ Government)].
7(a). Whereas the section which statute book earlier read as under:j--' "(10) The amount ofggprof/'ts_ 'ii2V_A.caséh'V'.,n0'fvan V' K undertaking developing buiiding.V_housingV~V projects approved befo__r_e'-..tf;e_» 31" 'of March, 2005 byfa /o.ca/j_'ga'uthority, sha//Vibe hundred per cent the in any previous year re/e\?ani;Vto.:any.Vassessment year from h it
(a)§. has commenced or """ " ' -. ':jcomf.fi'ences- «"_'deve/opment and the housing project on . o'r''aft"er' .tV"14".'.day of October, 1998;
-- ., g(b)au" .7Projec't: is on the size of a plot of it /an'd'v---'.--~--.-V'-.-hitch has a minimum area 0 one ,,,,...gi_cre; and "=4('c)'_ThevVresidential unit has a maximum Abui/t~up are of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty--five s./ -19- kilimetres from the municipal limits of these cities and one thousand and fliv/e1I'R hundred square feet at any V. place. "
8. From the aforesaid provlsiloni,' ityis. c-learf-.th'e':':t_t the first condition to be satisfied forllapplicatiiortgoftllthis provision is that the housinng"v«.proVject"requires to be approved by a local B.efo"re_>gan approval is sought for, the assessee-has prepared. If the assessee b'en'e'fi't of the aforesaid section, notwyitihstandling.r't'lie«. contained in the building bylaws, the.Asali'cl_pl_a'ny also-shou'Ed be in conformity with the aforesaid provision":~.un:d'er_"the Act. After preparing the plan;"obtaining'approval, he has to commence the connplete it within the period stipulated in sla'icl:"'--«.p_roxvision. In. the substituted provision, the legi's.latu're».h"as consciously bifurcated fsuch construction of J'h.oVu_sing~---project into three cases. The first case deals with approval obtained by the local authority before the 15' l/ -20- day of April 2004; in the second case, after 15' day of April 2004 and before the 315' day of March 2005 third case, approvals obtained after the 15' 2005.
9. In respect of appprovalsl:'0btainledL"pri'orajtojyl' 01.04.2005, if sub-section 14V(a')v,.'.:.o"f,Sectio--n_:80IB Vi"s.'::iiéIdV' to be applicable, then, the-0"a,ssess'e'e".hasV:"tQ' neces'sa'r'ily seek for a modified plan. with the construction the modified plan, he wotild'fin0t""be__eli'Qji:~b§l'e- benefit of tax exemption under if a valid approval is obtainedfand constructed in all respects prior to 01.V§04..2'000'v._an~.ds if.-the said substituted provision is applicable--«retrospectively, the assessee would ,,e'n,titled:t0..the benefit of tax exemption, if he effects sales"'lsub.se'§'ue'nt to 01.04.2005. Such an interpretation ".l"lOt o~nVlyg_ would be absurd but have disastrous '~.lfC0,nVseauences so far as the assessee is concerned. Therefore, it cannot be said that, that was the intention of V _ 21,-
the legislature while bringing in the substitution. __.So we should keep in mind the object behind enactin:'g--._:'th'is provision, namely to bring in investment-ts encourage the infrastructure _developrjne'n"t'-:'_g3f""'rnidd-lei' income housing projects. If the azforesaiyd pro'vi:sion to be retrospective in natur'e,'i't.,..would negated'tAh._e"ebject of-if the said provision. It settledlaw that the have to harmonize these proVv'isVions'é~.in'terpV'ret the same in a manner to achieve the than to distress the of the matter, the definitionorcpbgiimg in sub--Section 14(a) of Section No.2 Act of 2004, which came into effect ~ cannot be held to be ret'rg;)s'pe.ctive."» ._,_¢_1tapplies only to such housing projects, vyfihillch_:"a:re_Vi:a'pproved subsequent to 01.04.2005. In that view. o'f7t_he Vmaltter, the assessee, in the instant case, is enti-tled':tovt'he benefit of the aforesaid provision and hence the said 'substantial question of law is answered in favour 'of'thle assessee and against the revenue. V _22_ 1o. ruygp ANQ FQLIRTH SUBSTAN-T.-lg;
QQESTIQNS QF LAW:
The question is whether a housing projec-t__:inc_lrudes M commercial complex. In other w'ords',»if'.in the"'4lioVu'si'ng.':
projects approved by the local a»ut__hO-rlity, complex is also constructed, doesit cease tobge housing V Droject so as to disentit'le.V thel~~a's'seV$SeVes.f_rom' the benefit of Section 8018 (10) of theiAc'_t'.' T' f
11. satisfied for application which applies to a case oi7_jar1_! cundegrtaglcingjfldleyelopilng and building housing projects Aap_p'i'oved...b§{Aall'o'ca'|'_'a.uthority. In the instant case, what;isv a.pprove_d"is alihousing project. The said housing project of ambuilding where 84 residential units are li'cor'istruct:e-d_:' an-d--"'a commercial building measuring about 1760.0 sq.' -;ft';Aof built up area is constructed. The total Vvlarega covered by these constructions is about 1 acre 14 In other words, the residential building is kg -23- constructed in an area comprised in one acre of land. As there is 14 guntas of land in excess of the prescrib,e.d_:"I-i_m.i_t, the assessee has utilised the said land for the--§Vp.ur'pojs--e:' constructing a commercial complexyalso. Wh'en:'_a'h'ou--sing "
project is constructed, it is meantv'».for;_faf.hi|ies' l~iV'i'ng"t:i1.erta._* Normally these constructions are taken up='e'i't.he.r_ inc: the outskirts of the city or far the :Naturally these residents do needftoi requirements. If such a basic requirement:wl1'Vere they reside probably theyi re:sidVe'nti:a'i"':apartments would be more such a commercial constructionAcalnnothe'«cgonstructed within one acre of land, which the for attracting this provigsion at t»he"cost' of residential flats. If such an placed, it would defeat the very object of the same time, probably experience has sho'wed..__"t'ii-at under the guise of putting up a residential :"hou_sing~---project and claiming benefits as in this case, a .._«"c_on--*.rnercial building measuring about 17600 sq ft. is l/ _24_ constructed which works out roughly to 9.3% of the total land. In that context, the legislature wanted to clarih/__:'t~he position and prevent such abuses in future. _.:'_:Th'erefojre,___"'_ prior to 01.04.2005, there was nomsuch p-ro'h-5-.bji'ti:on:. the first time by way of amendment, t-he)? clause 'd' of sub--Section 10>of..__Secti'on'"80IB,'v:'w,hi.c,hVVVreads as under:--
"(d) the bvui/tfup'«._ar.:g;'aVl'. shops and other commercial" estab.lishrnents--ljnc/uded in the housing ':-project 'does, V' exceled [three] per cent» off:_th;e 'aggregate bu//rib}: area of the hous/'thy Lthotirgsand square feet, i,Vlrhichev§é3.rV is " .
12."'~__T'r~.i,smakes it clear that a housing projectv 'includ'e's--._shops and commercial establishments .'also:. from the day, the said provision was inserted, l"'t~heiy_'w'an'te_d"l§;.'t'o' limit the built up area of shops and
--V establis'hm'e"nt to 5% of the aggregate built up area or it ft. which ever is less. But the experience shows the commercial space would not meet the kg -25- requirements of the residents. Therefore, in the year 2010, it was further amended to the effect that i_t..sh.ou..l_d not exceed 3% of the aggregate built up housing project or 5,000 sq. ftwhich eve'r~:..:i_s,"'h:ig'her.,i it Therefore, from this definition, it clearfthati the 'h'o:i3sisirig_*é project contemplated under sub«.:_5ecti'on"'10V o'fjSV'e.(;tiQ,n, Eéi0IVB includes commercial establishmle«n,t's.,or Now, by way of an amendmen't,_Aa'n __made to retract the size of the Said .'c.o_m_n'i.e'rci:a.l1.,."establishments. Therefore, also has to be read Dro5DeCti§i.eljy retroV'S:.§DVé'ctively- As is clear from the 't.h'i's'.._pr.ovisVion came into effect only from substituted. Therefore, it cannot' be reltmspectiye. . In that view of the matter, the 0"interprgfationtplacedwby the Assessing Authority as well as 'the.*_App.el-late:-C~ommissioner, that the approval is for a hou's.ing,___v'cur9n commercial complex and therefore, the TA.""'~..VVV"assess.e'e-- is not entitled to the benefit of Section 801B (10) ..«'ils""unwarranted. Therefore the 3"' and 4"' substantial l.l/ _26_ question of law are answered in favour of the assessee and against the revenue.
For the aforesaid reasons, the substantiai of law being answered in favou'rWo'fi"the:, a;sse:ssee"'a'nd"'. against the revenue, the appeal is disririisised. ~ '~ V' R .'v_r'an_ Prs*